If State Government Shuts Down, Some Legislation That Passed Could Be Scrapped

About two years ago, when Rep. Tina Orwall (D-Des Moines) was touring police evidence rooms, she noticed stacks of white boxes everywhere. “What are these boxes?” she asked. “Sexual assault kits,” she was told. “I said, ‘Have they been tested?’ And, well, they couldn’t tell me.”

It was shortly afterward that Orwall discovered that Washington state had some 6,000 untested rape kits sitting in those evidence rooms—and that there are hundreds of thousands of untested rape kits across the country. Hundreds of thousands of alleged victims of sexual assault undergo invasive exams so that investigators can collect DNA and other evidence for potential criminal prosecution, but without the resources required to analyze them, that evidence goes nowhere. “It’s a national epidemic of survivors not being heard,” she says.

Orwall sponsored several bills during the 2015 and 2016 legislative sessions to help chip away at the problem in Washington state. Among other things, those bills provided $3.5 million in state and federal funding to speed up the rape kit testing process; established a multidisciplinary best-practices task force; and set up the nation’s first online tracking system so that victims can at least have some information about what’s happened to their exams.

This year, she sponsored HB 1109, a continuation of those efforts. The bill provides funding to create community-response teams, complete with victim advocates, so that once a sexual assault kit is analyzed and processed—spurring, perhaps, a new investigation into a cold case—the alleged victim can be informed without being retraumatized. And it requires trauma-informed training for sex crime investigators going forward.

To Orwall, these “are absolutely critical next steps.” Many rape survivors “didn’t feel like they were believed or heard. Or maybe they didn’t realize their kit was sitting, collecting dust. We’re finally going to test it, but if we don’t train law enforcement on trauma-informed approaches and how to work with survivors, [it’s possible we] may test the kits and go back and do harm.” The bill essentially makes it standard practice “to do what we should have done the first time.”

But with a looming government shutdown, all of that work could go completely out the window. That’s because HB 1109 relies on resources from the state’s general fund, and thus contains what’s known as a null and void clause. “If specific funding for the purposes of this act,” the bill reads, “… is not provided by June 30, 2017… this act is null and void.”

Legally, that means exactly what it sounds like it means: Although HB 1109 was passed by both state houses and signed by Gov. Jay Inslee, if it does not get its funding by 11:59 p.m. on June 30—which would, by definition, be the case if lawmakers can’t agree on a budget by then, triggering an official government shutdown—it will be tossed to the cutting room floor and Orwall will have to start all over again next year. “It’s pretty unthinkable, isn’t it?” she says. “Of course, just the harm of the government shutting down is pretty overwhelming in itself. [But] a lot of us have been sitting, worrying … It was a big deal to get that [bill] through! We just know it was the voice of the survivors that really have led this effort … They’re really counting on us to get this work done.”

Of course, it’s quite possible that a budget will pass by June 30, and funding will be provided for the bill, assuaging everyone’s worries. And Rep. Larry Springer (D-Kirkland), a member of the House Appropriations Committee, which takes part in budget negotiations, says that there are ways to remedy the situation, even after June 30.

The null and void clause “is a way of saying, ‘we’ll pass it, [but] it doesn’t become law unless it’s actually paid for in the budget,’ ” he says. That would be a messy situation: A law that makes a promise it can’t keep. As a result, any bill with a null and void clause may or may not get its funding, government shutdown or no, given the vagaries of budget negotiations and total dollars available. Springer believes that this is a more important factor than the June 30 deadline. “If we don’t have a budget on June 30, then of course, technically, [a bill is] null and void because we don’t have a budget,” he says. “But that could change very quickly on July whatever, in which case it could end up right back there.”

Kyle Thiessen, the state’s code reviser, says that lawmakers would likely have to do one of two things to get around the null and void clause. One: They could pass another bill (very quickly) sometime before June 30 that pushes back the June 30 null and void deadline within existing bills. There could be as many as 30 or 40 bills this session with null and void clauses, he says. Two: They could pass another bill after the June 30 date to revive it in some way. “I’m not aware of a bill that was revived without some specific act … to indicate that it should be funded in spite of the null and void clause,” Thiessen says. “If the legislature wanted to revive it, and there was an act in the budget or some other bill that made it clear they were attempting to fund it … we’d probably treat it as back to life.”

It is Thiessen’s preference—and likely everyone’s—that it won’t come to that. Probably some of the murkiness here comes from the fact that despite many close calls, the state government has never officially shut down before. So, while a bill like HB 1109 “is certainly at risk,” Thiessen says, “I’m guessing … if [lawmakers] intend to have it funded, something will happen to make sure that happens.”

But with everything still in limbo, few are holding their breaths.

“It’s sad to me that we’re reaching this point,” Orwall says, echoing many state lawmakers in both frustration and resolve. If she has to, she will take up the banner on this bill again next year. “I remain hopeful that we’ll get done” by June 30, though. “A lot is at stake.”